[1] The legal interest in the crime of false entry in the authentic copy of the authentic deed or the crime of false entry in the official electronic record, elements for establishment, and the meaning of "non-performance" as stated in the above crime

[2] In a case where promoters, etc. of a company can be deemed to have established by registering the incorporation in accordance with the requirements and procedures for the establishment of a company under the Commercial Act and other Acts and subordinate statutes, whether the registration of the company and the details thereof constitute “non-performing facts” as stated in the crime of false entry in the authentic copy of authentic deeds or in the crime of false entry in public electronic records, etc. (negative in principle) / Whether the promoters, etc. may be deemed to have recorded false facts in the corporate register solely on the grounds that they did not have any substance of business, such as the company’s human and material organization, at the time of incorporation (negative)

[1] Article 228(1) of the Criminal Act / [2] Article 228(1) of the Criminal Act

[1] [2] Supreme Court Decision 2019Do9293 Decided February 27, 2020 (Gong2020Sang, 760) / [1] Supreme Court Decision 2001Do5414 Decided January 27, 2004 (Gong2004Sang, 413) Supreme Court Decision 2012Do12363 Decided January 24, 2013 (Gong2013Sang, 441) (Gong2015 Decided February 15, 2017) / [2] Supreme Court Decision 2019Do13217 Decided March 22, 2020

Defendant

Defendant and Prosecutor

Attorney Kim Jong-soo

Suwon District Court Decision 2019No2725 decided October 24, 2019

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of a defendant's written application filed after the period of dismissal expires).

1. Judgment on the grounds of appeal by the prosecutor

The crime of false entry in the original of a notarial deed or false entry in the public electronic record, etc. (hereinafter referred to as “the crime of false entry in the original of a notarial deed”) under Article 228(1) of the Criminal Act is a crime under which the benefit and protection of the law is to guarantee the public credibility of the official document recognized as special credibility. The crime is established when a public official files a false report contrary to the truth and causes the public official to enter or record false facts inconsistent with the substantive relations concerning the matters proved in the original of a notarial deed or the special media records, such as the same electronic record (see, e.g., Supreme Court Decisions 2001Do5414, Jan. 27, 2004; 2014Do2415, Feb. 15, 2017). The term “non-existence of the facts” refers to the fact that contravenes the truth with important meaning in a rights and duties relationship (see, e.g., Supreme Court Decision 2012Do12363, Jan. 24, 2013).

In a case where promoters, etc. of a company can be deemed to have established by registering the incorporation of a company in accordance with the requirements and procedures for the establishment of a company under the Commercial Act and other statutes, such as the Commercial Act, the registration of incorporation of the company and the details stated therein do not constitute false facts as stated in the crime of false entry in authentic deeds, etc., barring any special circumstance. The mere fact that promoters, etc. were intended to commit an offense using a company at the time of incorporation of a company without the intention to actually operate the company, or that they did not have any substance of business, such as human and material organization of the company, cannot be deemed to have recorded such false facts in the corporate register (see Supreme Court Decision 2019Do9293, Feb

The lower court maintained the first instance judgment that found the Defendant not guilty of the part on which the Defendant had entered false facts in the corporate register by registering the incorporation and exercised the same, even though the Defendant did not have established a stock company as stated in the facts charged regarding false entry and exercise of public electronic records, etc.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by misapprehending the legal doctrine regarding false reports or false facts as stated in the crime of false entry, such as the original of a notarial deed, as otherwise alleged in the prosecutor’s grounds of appeal

2. Judgment on the defendant's appeal

The Defendant did not submit a written appeal, and on November 25, 2019, the period for filing an appeal expired, the Defendant submitted a written statement of “statement of grounds for appeal” to the Supreme Court with the Supreme Court. However, even if this is considered as the place of appeal, the subsequent appeal is unlawful, since it was filed after

3. Conclusion

All appeals by prosecutors and defendants are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)